Originalism to the rescue: The institutional design of the Election Commission

Given the political uncertainty caused by the ‘debate’ over the 123 agreement, the seemingly abstract debate about the constitutional status of Election Commissioners (other than the Chief Election Commissioner) has gained new importance in view of the possibility of a mid-term poll.

R.C. Iyer, a former Chief Electoral Officer of Maharashtra, has an excellent column in today’s Indian Express which sets out the background context and history of this issue succinctly, and argues for political consensus and Parliamentary initiative on the process by which an Election Commissioner can be removed. In his piece, Iyer also criticises the stand taken by Arun Jetley in an Express op-ed published on Aug 21, 2007. For further background information on this issue, see this earlier post on our blog.

The purpose of this post is to highlight the debate in the Constituent Assembly on this issue, as both Jetley and Iyer seem to indicate that the framers did not adequately provide for the existing situation. Here is how Jetley frames the issue:

“Article 324 gives administrative primacy to the CEC. The EC can consist of a CEC and such other election commissioners as may be provided from time to time. There is, however, one fundamental flaw in the Constitution. The Constitution does not provide the qualifications for appointment of an election commissioner or CEC. It merely provides that the appointment shall be made by the president, on the aid and advice of the council of ministers. Members of the EC are thus to be appointed by the political executive.”

As I seek to demonstrate, the framers did debate this specific issue, but came to a solution that they thought was the right one, and which in fact guided practice from 1950 to 1989. The situation since 1989 may require us to make changes to the scheme of the Election Commission, but that does not necessarily point to a flaw in the Constitution.

The drafting history of current Article 324 is concisely covered in Justice Sawant’s judgment in the Dhanoa case (SS Dhanoa v. Union of India, AIR 1991 SC 1745). The background details of this case are provided in Iyer’s column, as well as in the previous blog post on this issue. I extract the relevant portions of the judgment which set out the debate in the Constituent Assembly (from paras 11 and 12 of the judgment):
“In the Draft Constitution, the present Article 324 was numbered as Article 289. It appears from Dr. Ambedkar’s introductory comments on the Article (Constituent Assembly Debates, Vol. VIII p. 905) that the Drafting Committee appointed on the Fundamen tal Rights had made a report that the independence of the elections and the avoidance of any interference by the executive in the elections to the legislature should be regarded as a Fundamental Right and provided for, in the Chapter dealing with Fundamental Rights.
When the matter came up before the House, it was decided to treat it as of fundamental importance but to provide for it in some other part of the Constitution and not in the chapter dealing with Fundamental Rights. The House had affirmed without any kind of dissent that in the interests of purity and freedom of elections, the Commission should be free from any kind of interference from the executive of the day. Article 289 (now Article 324) was designed to carry out that part of the decision of the House. Explaining the provisions of Clause (2) of the Article, Dr. Ambedkar stated that there were two alternatives before the Drafting Committee, viz., either to have a permanent body consisting of 4 or 5 members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil.
The Drafting Committee had steered a middle course. What the Committee proposed by the said clause was to have permanently in office one man called the Chief Election Commissioner so that the skeleton machinery would always be available. This was felt sufficient, taking into consideration all exigencies. At the same time, it was felt that when the elections come up, the President may add to the machinery by appointing other members of the Commission.
Commenting upon Clause (4) of the then Article 289 (now Clause (5) of Article 324), Dr. Ambedkar stated as follows: So far as Clause (4) is concerned, we have left the matter to the President to determine the conditions of service and the tenure of office of the members of the Election Commission, subject to one or two conditions, that the Chief Election Commissioner shall not be liable to be removed except in the same manner as a Judge of the Supreme Court. If the object of this House is that all matters relating to Elections should be outside the control of the Executive Government of the day, it is absolutely necessary that the new machinery which we are setting up, namely, the Election Commission should be irremovable by the executive by a mere fiat. We have, therefore, given the Chief Election Commissioner the same status so far as removability is concerned as we have given to the Judges of the Supreme Court. We, of course do not propose to give the same status to the other members of the Commission. We have left the matter to the President as to the circumstances under which he would deem fit to remove any other member of the Election Commission, subject to one condition that the Chief Election Commissioner must recommend that the removal is just and proper.(Emphasis supplied) Prof. Shibban Lal Saksena wanted, among other things, the appointment of the Chief Election Commissioner as well as of the Election Commissioners to be confirmed by two-third majority in a joint session of both Houses of Parliament. He also wanted both the Chief Election Commissioner and the Election Commissioners to be removed by the same process, viz., in like manner and on the like grounds as a Judge of the Supreme Court, and non-variation of the service conditions of the Election Commissioners to their disadvantage as was provided for in the service conditions of the Chief Election Commissioner. This amendment was supported, among others, by Pandit Hriday Nath Kunjru. The amendments were not accepted by the House, and the distinction between the Chief Election Commissioner and the Election Commissioners with regard to the security of the service conditions and the procedure of their removal was maintained as was proposed.” It bears emphasis that Professor Shibban Lal Saxena had sought to incorporate the precise change that is now being demanded by several commentators (that Election Commissioners have the same status and removal conditions as the CEC). The reason this was rejected was more because the framers had an alternative conception of the Election Commission: they believed that the institution should have one permanent head and that others could be appointed as and when conditions so merited.

Note also that the Election Commission seems to have performed adequately for nearly four decades in that form. Indeed, when the first two Election Commissioners were appointed, there was controversy over whether the workload justified such an increase. Moreover, the first two people appointed to the post of Election Commissioners did not, through their acts, add weight to the need for such posts.

Here is what the Supreme Court concluded on the facts presented in the Dhanoa case (at para 17):

“The experience of the short period during which the petitioner and the other Election Commissioners were in the Commission … shows that were it not for the restraint and sagacity shown by the Chief Election Commissioner, the work of the Commission would have come to a standstill and the Commission would have been rendered inactive.
… … …In the view that we have taken, namely, that there was no need for the posts of the Election Commissioners at the time the appointments were made and that in the absence of a clear definition of their role in the Commission, particularly, vis-a-vis the Chief Election Commissioner, the appointments were an oddity, the abolition of the posts far from striking at the independence of the Commission paved the way for its smooth and effective functioning.”
At para 21, the Court addressed the issue that is at the heart of the current controversy:
“There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill-conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught.” Jetley’s argument that there is a flaw in the constitutional scheme with respect to the Election Commission betrays an ignorance of the way the framers conceived of the institution.

The Dhanoa case also reminds us that a multi-member Election Commission is not necessarily a stronger and more efficient protector of democratic values. Those who are contemplating changes to the existing set-up (or those who recommend such changes) ought to be aware of the actual reasons and motivating logic for the status quo.

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  • Dear Arun,

    Well-researched and enlightening post. Arun Jaitley, in his op-ed, makes a point about a SC order in relation to the Writ Petition 606/1993, if I remember correctly, by interpreting section 28A, RPA 1951 and section 13CC, RPA 1950 to grant power to the EC rather than the center or state to remove officers for delinquent conduct during elections and argues that the same must apply to commissioners, both EC and regional, as well. He also draws an analogy with the second judges’ case ostensibly in support of the contention that the reference to the CEC’s recommendation in the proviso of section 324(5) is binding on the government. I would like to know what you think of them.

  • I will try and respond to the issues you’ve raised as to Jetley’s op-ed. To be frank, I found the op-ed poorly argued – it wasn’t clear to me what exactly Jetley was arguing for, apart from saying that the government of the day should not be allowed to intervene in decisions about the EC that would suit its own interests. I guess thats part of the problem of trying to take on so many issues (including a gratuitous dig at Pakistan, seeking perhaps to score political points with BJP supporters) within the space of a 1000 word op-ed.

    Let me take what you suggest as a plausible argument that Jetley was trying to advance. So, the argument would be that to preserve the Election Commission’s independence, the govt. should not be allowed to have a say, and it should be the CEC who should decide, based on the WP he cites, and his interpretation of the Second Judges’ case. I am assuming that Jetely invokes the latter because just as the SC decided that the best way to preserve judicial independence was to take out the government’s role in judicial appointments, and for judges to appoint judges, the CEC should take over the role of who should be appointed or removed from the Election Commission, in the name of preserving the EC’s independence.

    I think this would be disastrous. Concentrating power in the CEC is not necessarily the best move – recall how Seshan sought to humiliate GVG Krishnamurthy and MS Gill. Also, this will give the govt which has the chance to appoint the CEC a huge stake in trying to guide future electoral results for a long time by putting in place its own acolyte. Iyer’s column alludes that this is exactly what was sought to be done by the BJP when Jetley was the Law Minister.

    The Second Judges’ case is actually a good way to build an argument against this measure (assuming that Jetly is indeed arguing for the CEC to have pre-eminent power). Is our judiciary necessarily more independent now that judges of the apex court have such an overwhelming say in who gets appointed to the judiciary? There is clearly a perception that judges who fit the criteria of current SC judges are being appointed. Is that necessarily a good thing? Are sitting judges of the SC the best arbiters of what is best for judicial independence?

  • Dear Arun,

    I agree with much of what you say – Jaitley’s op-ed is mediocre at best – but his reference to the writ petition 606/1993 does raise, I think (without having read the judgment itself), an important point that R.C.Iyer does not specifically address in his rejoinder. As you have pointed out in the blog, the CEC’s position is by design inherently different from that of the ECs and regional commissioners. Section 28A, RPA, 1951 states: “The returning officer, assistant returning officer, presiding officer, polling officer, and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date  of declaration of the  results of such election and  accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission. Section 13CC, RPA, 1950 reads: “Electoral Officers, District Election Officers, etc., deemed to be on deputation to Election Commission.The officers referred to in this Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to  be on deputation to the Election Commission for the period  during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.” These provisions, he says, led the SC to hold that the EC rather than the government has the power of disciplinary action during elections. Since Art. 324 makes no distinction in terms of appointment/removal for ECs/regional commissioners or other officials lower in status than the CEC and their appointment/tenure/removal are all subject to the provisions of parliament, his argument appears to be that, the same ought to apply to them as well. On the face of it, this contention might have some merit.

    I accept that the second judges’ case is seen better as an example of an interpretation to be avoided rather than followed. I was only wondering whether, if that analogy was brought up in Court, it might find a sympathetic ear given that the judges’ power to make judicial appointments is owing to that legacy. I do not think that Jaitley sought to go so far as to claim that the CEC was empowered to appoint other ECs, only that the binding requirement that the ECs/RCs not be removed ‘except on the recommendation of the CEC’ laid down in the proviso to Art. 324(5) is analogous to the requirement for consultation of the CJI in Art. 124, i.e., the binding requirement for consultation in both cases implies that the advice itself is binding (consultation equals concurrence as some scholars have put it).